Risk Assessment —

Senate Judiciary Committee approves Big Brother bills

A bill recently approved by the Senate Judiciary Committee would legalize the …

The Senate Judiciary Committee has approved two competing bills designed to overhaul electronic surveillance laws and address the legal ambiguity of the NSA's wiretap program. One of those bills, the National Security Surveillance Act (S.B. 2453), would legitimize the NSA's controversial domestic surveillance activity, and thwart current efforts by the EFF and ACLU to challenge the legality of the program in court.

Authorized by an executive order signed by President Bush in 2002, the extralegal spying program enables the NSA to engage in covert domestic surveillance of American citizens and foreign nationals. Revealed to the public last year by the New York Times, the NSA's controversial program has become the subject of contentious debate. After the Senate decided not to pursue an inquiry into the program at the insistence of vice president Cheney, the EFF and several other organizations filed suits against the government and the telecommunications companies that facilitated the program. The federal government tried to crush the litigation by invoking the state secrets privilege. Although the ACLU's case was dismissed, Judge Vaughn Walker rejected the state secrets argument, and decided to permit the EFF to pursue it's case against AT&T. The Al-Haramain Islamic Foundation lawsuit against the NSA was also permitted. Characterizing the program as unconstitutional, Judge Anna Diggs Taylor ordered the NSA to halt unwarranted surveillance activity earlier this month.

Sponsored by Senator Arlen Specter and described as a "compromise" with the White House, S.B. 2453 radically redefines surveillance, dramatically expands the power of the executive branch, substantially weakens fourth amendment protections, and imposes limitations on judicial and congressional oversight to an extent that critics (including myself) claim is antithetical to the Separation of Powers doctrine and the American system of checks and balances.

If passed, S.B. 2453 would legalize the NSA's current domestic spying activity, and permit the government to establish entire electronic surveillance programs with a single FISA warrant. The bill would also change the definition of surveillance to allow the government to intercept "dialing, routing, addressing, or signaling" data from purely domestic electronic communications without requiring a warrant. In essence, the government would be free to compile massive databases that track the source and destination of practically all domestic e-mail messages and phone calls as well as the web browsing habits of American citizens. The bill further expands the NSA program by permitting interception of the content and substance of purely domestic communications in cases where one party is located on "property or premises under the open and exclusive control of a foreign power," enabling interception of messages sent to or from foreign embassies located in America.

S.B. 2453 would also allow the government to move all litigation and legal challenges to federal surveillance programs into the FISA courts, where only government lawyers are permitted to see and present evidence. The bill would permit the FISA court to "dismiss a challenge to the legality of an electronic surveillance program for any reason provided for under law." If passed, S.B. 2453 would easily put an end to the lawsuits pursued by the EFF, the Al-Haramain Islamic Foundation, and others. It would completely prevent public scrutiny of domestic intelligence gathering programs and silence those that have been subjected to such programs. Finally, the bill would expand executive authority by removing all restraints on presidential power from FISA. The bill allows the President to authorize domestic electronic surveillance programs without any judicial oversight at all.

Condemned by the American Civil Liberties Union (ACLU) as "a rubber stamp for the administration?s abuse of power," S.B. 2453 has infuriated privacy and civil liberties advocates. ACLU Senior Counsel for Legislative Strategy Lisa Graves comments, "The approval of partisan bills to ratify the illegal spying on Americans demonstrates cowardly obedience to the president, to the detriment of the liberty and privacy of the American people and the rule of law." According to the Center for Democracy and Technology (CDT), Specter's bill paradoxically "define[s] large categories of electronic surveillance as not being electronic surveillance," and "divests the Foreign Intelligence Surveillance Court of jurisdiction to review the President's program." The CDT also points out that the scope and nature of the data mining permitted by S.B. 2453 is "reminiscent of the Total Information Awareness program," which we have discussed in the past in relation to the NSA program.

Senator Feinstein's bill, the Foreign Intelligence Surveillance Improvement and Enhancement Act (S.B. 3877), was also approved by the Senate Judiciary Committee. Cosponsored by Specter despite the fact that it competes with his own bill, S.B. 3877 received bipartisan support and is endorsed by numerous civil liberties groups. Much less radical than competing proposals, Feinstein's bill attempts to safeguard civil liberties while resolving problems with current FISA legislation identified by the administration, including "significant time delays, and inadequate administration personnel."

Feinstein's bill requires the President to adhere to the rule of law, and explicitly states that Authorization for Use of Military Force does not give the president "an implied authority to act outside of FISA." The bill would also require electronic surveillance activity to be disclosed to Congressional intelligence committees. While still requiring warrants for surveillance, S.B. 3877 would allow retroactive warrants to be acquired as much as 7 days after the fact, expanding the time window from 72 hours. The bill would also extend support for "hot pursuit" wiretaps in a manner that would allow law enforcement and NSA supervisors to authorize surveillance without a warrant, as long as the Attorney General is notified within 24 hours. The CDT praised Feinstein's bill, saying that it "restores the constitutional balance of power and is narrowly focused on the issues the Administration said caused it to circumvent FISA -- namely, the need for more resources, greater speed in approving FISA applications, more flexibility to begin wiretapping in an emergency, and clarity that a warrant is not required for the interception of foreign-to-foreign communications."

Specter's support for both bills is peculiar to say the least. Despite the inherently contradictory nature of the two proposals, Senator Specter does not feel that his position is in any way inconsistent. The proposal authored by Specter in cooperation with the White House could be part of a Republican pre-election strategy to push for a vote on controversial national security issues that will provide Republican Congressional candidates with an opportunity to characterize their opponents as "weak on terrorism."

When it comes right down to it, both of the bills inherently degrade fourth amendment protections and expand the scope of the federal government's investigative power and authority for the sake of augmented versatility in the war against terror, but Feinstein's bill does so while simultaneously imposing concrete and well-defined limitations on the extent of Presidential power. In order to ensure that the American system of checks and balances remains intact, it is imperative that lawmakers reject proposals like the Specter bill, which eliminate oversight and accountability while imbuing the executive branch with the power to violate the freedom and privacy of American citizens. As the war against terror continues, the increasingly invasive investigative techniques used by the federal government must be coupled with vigorous oversight. Obscured by the dark curtain of the secretive FISA courts, domestic surveillance cannot be permitted to continue beyond the reach of public scrutiny.